Judge In “Zombie Mohammed” Case (Reportedly) Responds

We have had a great deal of discussion about the controversy over the remarks of Judge Mark Martin of Mechanicsburg, Pennsylvania in the dismissal of a charge against Talaag Elbayomy, a Muslim who attacked an atheist Ernie Perce for insulting the Prophet. Perce was parading as a zombie Mohammad in the Mechanicsburg Halloween parade when Elbayomy allegedly grabbed him. Elbayomy was at the parade with his family. Yet, it was Perce who ultimately came into a tongue lashing from Martin. Martin has now reportedly responded with the message below. I am not sure how much it helps on the merits, but he does clarify a couple of points if this response (which has appeared on several sites) is genuine.

In the hearing over the harassment charge, Martin first dismisses the charge. In the hearing, Martin notes that the evidence of the victim is conflicted and that there is insufficient basis to sustain a criminal charge. While the arresting officer disagreed (and the video seems to show a case of assault rather than harassment), that is the role of a judge as an impartial court. Martin states that he does not believe that the incident occurred as described by Perce without more witnesses coming forward: “All that aside, I’ve got two sides (of a) story that are in conflict with each other. I can’t believe that if there was this kind of conflict going on in the middle of the street and somebody didn’t step forward sooner to try and intervene that the police officer on the bicycle didn’t stop and say, ‘Hey, let’s break this up.’”

Notably, however, Martin says that he didn’t doubt that the incident occurred and the defendant admitted that he acted in response to an insult to Islam. Yet, this is not viewed as sufficient to sustain a harassment charge. Yet, putting aside the merits of the dismissal, it is what followed that concerned many of us — a lecture on Islam and the first amendment. Martin suggests that free speech was not meant to protect conduct like Perce’s. The tape below includes such statements as:

In many other Muslim-speaking countries, err, excuse me, many Arabic-speaking countries, predominantly Muslim, something like this is definitely against the law there, in their society. In fact, it could be punished by death, and frequently is, in their society.

Here in our society, we have a Constitution that gives us many rights, specifically First Amendment rights. It’s unfortunate that some people use the First Amendment to deliberately provoke others. I don’t think that’s what our forefathers intended. I think our forefathers intended to use the First Amendment so we can speak with our mind, not to piss off other people and cultures – which is what you did.

The veiled reference to Sharia law in this context was highly problematic. As I said earlier, those countries are examples not of some loosely fitting cultural defense but oppression and medieval justice. What is particularly disturbing, however, is Martin’s view of the first amendment.

In this statement, Martin denies being a Muslim. The tape appears to show him saying that he is, but he would know. In the end, the judge’s religion should never have been part of the proceeding to start with. Moreover, regardless of his religion, it is his legal views that seem grotesquely out of place.

Martin also denies threatening Perce with arrest for releasing the tape. He admits that he threatened to hold him in contempt and suggests that the controversy is proof that the rule not to publish the tapes is valid. However, while denying the issue about his faith, he does not question whether this is an accurate account of his statements on the first amendment.

This story certainly has legs. As you might imagine, the public is only getting the version of the story put out by the “victim” (the atheist). Many, many gross misrepresentations. Among them: I’m a Muslim, and that’s why I dismissed the harassment charge (Fact: if anyone cares, I’m actually Lutheran, and have been for at least 41 years).

I also supposedly called him and threatened to throw him in jail if he released the tapes he had made in the courtroom without my knowledge/permission (Fact: HE called ME and told me that he was ready to “go public” with the tapes and was wondering what the consequences would be; I advised him again to not disseminate the recording, and that I would consider contempt charges; he then replied that he was “willing to go to jail for (his) 1st amendment rights”- I never even uttered the word “jail” in that conversation).

He said that I kept a copy of the Quran on the bench (fact: I keep a Bible on the bench, but out of respect to people with faiths other than Christianity, I DO have a Quran on the bookcase BESIDE my bench, and am trying to acquire a Torah, Book of Mormon, Book of Confucius and any other artifacts which those with a faith might respect).

He claims that I’m biased towards Islam, apparently because he thinks I’m Muslim. In fact, those of you who know me, know that I’m an Army reservist with 27 years of service towards our country (and still serving). I’ve done one tour in Afghanistan, and two tours in Iraq, and am scheduled to return to Afghanistan for a year this summer. During my first tour in Iraq, I was ambushed once, attacked by a mob once, sniped at once, and rocketed, bombed, and mortared so many times that I honestly don’t know how many time I’ve been attacked. Presumably by Muslim insurgents. My point: if anyone SHOULD be biased towards Muslims, one would think it would be me. I’m not, however, because I personally know or have met many good, decent people who follow Islam, and I shouldn’t characterize the actions of those who tried to kill me as characterizations of all Muslims.

When I asked him why he dressed up as “Muhammad zombie,” he told me that it was because he was reflecting the Muslim belief that Muhammad rose from the dead, walked as a zombie, and then went to heaven. That was one of the reasons I tried to spend 6 whole minutes trying to explain and de-mystify Islam through my own knowledge, and in an attempt to prevent an incident like this recurring in my community. Unfortunately, the message was obviously not received in the vein that I had intended. And, in the interest of full disclosure, I did use the word “doofus,” but didn’t call him that directly; I said something akin to “ if you’re going to mock another religion or culture, you should check your facts, first- otherwise, you’ll look like a doofus.”;

In short, I based my decision on the fact that the Commonwealth failed to prove to me beyond a reasonable doubt that the charge was just; I didn’t doubt that an incident occurred, but I was basically presented only with the victim’s version, the defendant’s version, and a very intact Styrofoam sign that the victim was wearing and claimed that the defendant had used to choke him. There so many inconsistencies, that there was no way that I was going to find the defendant guilty.

A lesson learned here: there’s a very good reason for Rule 112 of Rules of Criminal Procedure- if someone makes an unauthorized recording in a Court not of Record, there’s no way to control how it might be manipulated later, and then passed off as the truth. We’ve received dozens upon dozens of phone calls, faxes, and e-mails. There are literally hundreds of not-so-nice posts all over the internet on at least 4 sites that have carried this story, mainly because I’ve been painted as a Muslim judge who didn’t recuse himself, and who’s trying to introduce Sharia law into Mechanicsburg.

In this case, the release of the tape would seem to have served the interests of justice in that the judge has some highly mistaken views about free speech. This purported statement from the judge does not question the accuracy for those statements on the first amendment. Moreover, with the guarantee of public hearings (limited in relatively rare cases), the public has a right to know about such controversial statements from individuals given judicial power.

81 thoughts on “Judge In “Zombie Mohammed” Case (Reportedly) Responds”

  1. Still after a few months I still get mad that a US Judge can get away with taking the rights of a American in a American court. All he got was a little slap on the hand. He should been taken off and fired as a Judge>

  2. Your comment about this offense being an assault and not a harassment is incorrect. In PA, chapter 27 of title 18 covers crimes against the person. Section 2709(a)(1) is titled harassment and is the lowest level of assault and covers intentionally striking, kicking, shoving, or oherwise subjecting
    the person to physical contact. The next level of assault is section 2701 simple assault. Simple assault requires bodily injury or an attempt to cause bodily injury. This case does not rise to the level of simple assaukt and therefore is a harassment case.

    Besides that, the ruling is absolutely insane.

  3. martingugino — I only wanted to clarify that it was not my opinion, but was an opinion of SCOTUS. Calling any politician “looney” is certainly not libel since the truth is a defense. I don’t know what Rumsfeld’s parentage is nor do I care. Bush got us into Iraq so you judge. Finally, everybody in DC is a suck-up.

  4. BobS – thanks, but wow. So would calling one of the Republican candidates “looney” possibly be criminal? Or Rumsfeld a bastard? Or Bush an idiot? Or Tenet a suck-up?
    Or is it that insults to the strong are protected, but insults to the weak are not protected. I could see that….

    Thanks for the correction.

  5. martingugino. What is inside the quotes is taken from from the unanimous opinion of the Supreme Court. It is not what I think, it is what the Supreme Court has ruled.

  6. In his recent decision regarding an assault case, Judge Mark W. Martin dismissed an assault charge against a Muslim named Talaag Elbayomy, citing an excuse that, the victim Ernie Perce was to blame for being a victim because his dress offended the attacker’s religious beliefs.

    This is just an obscene decision which is wrong on so many levels, morally, ethically and legally.

    This decision brings law and order into disrepute, and as such constitutes malfeasance by Judge Martin.

    The state must act and intervene to restore law and order and to protect the constitution from being diminished by the actions of Judge Martin.

    In addition Judge Martin stated, in his decision, a clear conflict of interest which would have required him to recuse himself from this case.

    His negligent and egregious conduct in this case should permanently disqualify him from the position of judge. He is not fit or qualified to sit on the bench.

    Judge Mark W. Martin should be censored, reprimanded and dismissed from the bench for his actions in this case.

    Furthermore, if the state refuses to intervene and rectify this miscarriage of justice then the state of Pennsylvania should be held liable both for damages to the victim and for allowing justice to be brought into disrepute.

  7. Tradetree, you say “I will spare you the definition of speech vs. hate.”

    As I think you are aware, the “hate speech” ideas do not involve the emotion of hate. It involves actions directed at a protected class. Neither muslims nor members of other religions are such a protected class at this time AFAIK, and so that category does not apply.

    Is anti-semetic speech a hate crime?

  8. BobS – speaking, per se, is not protected by the first amendment, as you point out. “No talking” signs are legal.

    The first amendment forbids the punishment of heresy, and then goes on to similarly prohibit the punishment of expressions of belief of a non-religious nature, whether spoken or expressed in symbols (letters, say) or in other ways.

    But when you say that there are classes of speech, the criminalization of which “have never been thought to raise any constitutional problem. These include … insulting … words”, I think you go too far.

    If we outlaw insult, can ridicule be far behind?

  9. “First Amendment issues aside, I wonder why the organizers did not pull Mr. Perce from the parade. My bet is that costumes will be closely scrutinized next year and rules and regulations imposed.”

    Why would they? Where would they stop, in such a case? Does Islam deserve more protection that Catholics? Yes, I know that the Zombie Pope isn’t important to us, these days, but isn’t that because free speech has allowed enough exposure that it not an issue?

    Does Islam deserve more protection than Wicca? Yes, cartoon witches are only very loosely connected, if at all, to Wicca, but nonetheless, if Islam is afforded special speech protections, shouldn’t Wicca?

    And where do we stop with these special protections? At some point along this slippery slope, you must agree that even Atheists must be afforded special protections, as well. And at the point that everyone has these special protections, don’t we reach the situation where no-one has any protection?

    This idea that some particular race or religious group needs special protection because of their sensitivities is simply wrong-headed and counterproductive to the ideal of a civil society. We are either all governed by the same laws, or the country falls.

    1. Hedge – you say “We are either all governed by the same laws, or the country falls.”

      You have seen no doubt Glen Greenwald’s book “With Liberty and Justice for Some”, or the videos of his book tour. He raises a point similar to yours, although referring to a more clear and present danger than zombie popes.

  10. FWIW:
    1. In Pennsylvania district magistrates are locally elected and are not required to have been graduated from, or have attended, law school.

    2. In the realm of criminal law, PA district magistrates handle summary offenses (those acts below the category of misdemeanors or felonies.) Summary offenses punishable by less than a year in prison and/or by fine. Evidently that the county D.A. did not feel that Mr. Elbayomy’s alleged conduct rose to the level of either a misdemeanor or felony, otherwise Elbayomy would have been prosecuted by the D.A.’s office before a county judge ( a “real” judge).

    3. In PA at least, “fighting words” are a not a common law defense to a charge of battery. (By statute however, fighting words may be grounds for the charge of disorderly conduct.) Regardless, District Magistrate Martin’s acquittal of Mr. Elbayomy was not based on the doctrine of fighting words.

    4. First Amendment issues aside, I wonder why the organizers did not pull Mr. Perce from the parade. My bet is that costumes will be closely scrutinized next year and rules and regulations imposed. Pity the little children. Thank you, Mr. Perce.

    1. Anon – interesting that you point out that “fighting words” is not a defense for “fighting”. That seems to make a mockery of that line of thinking, almost equivalent to a zombie imam.

  11. The First Amendment does not protect all speech. The Supreme Court ruled in Chaplinsky v. New Hamshire that “There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or “fighting” words those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.”

  12. Sling – I think that your idea of adding the concept of “dick” into the first amendment is unlikely to gain a majority of the state legislatures, and I myself would oppose it as too vague.

    There are many actions that many people feel are wrong, but which are not illegal, and probably never will be made illegal. This is practical.

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